Final Rule for Veterans (VEVRAA)

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Final Rule for Veterans (VEVRAA) On September 24, 2013 the Federal Register published the Office of Federal Contract Compliance Programs (OFCCP) Final Rule revising the obligations of federal

1 Final Rule for Veterans (VEVRAA) On September 24, 2013 the Federal Register published the Office of Federal Contract Compliance Programs (OFCCP) Final Rule revising the obligations of federal contractors with regards to protected veterans under 41 CFR Part The Final Rule rescinds regulations codified in 41 CFR Part However, the revised regulations add many significant new requirements for applicant self-identification, contractor data collection, record-keeping, and recruitment efforts for protected veterans. The new regulations become effective 180 days after published in the Federal Register. Thus the effective date of the new regulations will be March 24, Compliance with the new AAP requirements (Subpart C) will be phased in over 12 months following the effective date; contractors with current AAPs in place can delay compliance with the AAP requirements until their next annual AAP update. However, compliance with the outreach, data collection, record-keeping and self-identification requirements of the new regulations must begin by the effective date regardless of current in place AAPs. HIGHLIGHTS OF THE NEW RULE The regulations apply to disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans (formerly known as other protected veterans ), Armed Forces Service Medal veterans, and pre-jva veterans (protected under the rescinded Part ). An individual matching one or more of these categories is defined as a protected veteran. Equal Opportunity Clause Each contracting agency and contractor subject to VEVRAA must include an equal opportunity (EO) clause in each federal contract or subcontract. The new regulations regarding the EO clause reference electronic posting and require contractors to state in job solicitations and advertisements that they are equal opportunity employers of protected veterans. The regulations also mandate specific language that must be included when incorporating the EO clause by reference in subcontracts. The EO clause shall be made a part of the contract by citation to 41 CFR (a) and inclusion of the following language, in bold text, after the citation: This contractor and subcontractor shall abide by the requirements of 41 CFR (a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. Contractors must ensure that notices of employee rights are posted in conspicuous places. Applicants and employees must be provided notices in a form that is accessible and understandable, such as in Braille or large print, or at a lower height. The posting obligation for employees who work at home or other off-site location can be satisfied by electronic means if the contractor provides computers or access to computers to remote employees or the contractor has actual knowledge that employees can access the posting. Electronic postings must be posted in a conspicuous location and format on the contractor s internal network or sent by to employees. Applicants who apply through an electronic application process must also receive the electronic notice and the notice must be stored with the application. A contractor

2 must also notify any labor organization or worker representative with which it has a CBA of its commitment to take affirmative action to employ and advance in employment protected veterans and that it shall not discriminate against protected veterans. Job Listing Obligations A contractor must provide job listings in any manner and format required by the state employment service delivery system (formerly referred to as state workforce agency or state agency ). If a contractor utilizes a privately-run job service or exchange, such as Direct Employers or America s Job Bank, the contractor will be in compliance if that job service provides the information to the state employment service delivery system in the manner and format permitted. In addition, each contractor must: Notify the state employment service delivery system (ESDS) that it is a federal contractor or subcontractor and that it requests priority referrals of protected veterans; Provide the state ESDS with the name and location of each hiring location within the state and contact information for the hiring official in each such location; and If a contractor uses an outside job search company to assist in hiring, provide to the state ESDS the contact information for such company. These disclosures must be made simultaneously with the contractor s first job listing at each ESDS location after the effective date, and must advise the ESDS location of updated information simultaneously with the next job listing subsequent to the change. Affirmative Action Programs The regulations require that the AAP, but not its data metrics, be available for review to applicants and employees upon request. The AAP can be provided in hard copy or electronically to those requesting to review the AAP. The AAP changes in the new regulations make significant changes to the data a contractor must collect, maintain, analyze and report. These new regulations change the AAP requirements to be much more similar to Executive Order AAP requirements. Contractors must give applicants the opportunity to voluntarily self-identify whether he or she is a protected veteran during the pre-offer process. Most contractors will likely use a similar method to their current race/gender invitations. Post-offer, a contractor must invite the applicant to identify whether he or she belongs to one or more of the specific categories of protected veterans. Sample Pre/Post Offer forms are included at the end of this paper. These samples are based on the OFCCP sample forms included in Appendix B of the new regulations. If a new hire identifies himself or herself as a disabled veteran on the post-offer self-identification form, the contractor should inquire of the applicant whether an accommodation is necessary. If so, the contractor should engage with the applicant in an interactive dialogue concerning possible reasonable accommodations. Because the applicant has revealed medical information in responding to the selfidentification, that form and any documentation related to the interactive dialogue on reasonable accommodations must be maintained in a separate file to which access is limited to those in the contractor s

3 workforce with a legitimate need to know the information. This disclosure may also affect information regarding the applicant and Section 503 AAP data collection requirements if applicable. A contractor is not relieved of its obligation to take affirmative action with respect to those applicants or employees who are known to the contractor to be protected veterans. Contractors are charged not only with taking affirmative action with respect to individuals who self-identify as protected veterans, but also with respect to applicants or employees who decline to self-identify as veterans but who the contractor knows through some other method to be protected veterans. Exercise extreme caution in regarding someone who has not self-identified as a disabled veteran, in order to avoid conflicts with ADA. Contractors are required to include their equal employment opportunity policy statement in their AAP and to post it on company bulletin boards. The regulations require that this statement shall identify the highest ranking official employed by the contractor in the United States, such as the CEO or US Division President for non-us corporations, and indicate his or her support for the AAP. The statement must be provided to employees in an accessible and understandable format. A contractor is required to include its affirmative action policy in its policy manual and otherwise make the policy available to employees, and any contractor who is a party to a CBA is required to notify union officials and/or employee representatives of the contractor s policy and request their cooperation. Contractors must identify and implement outreach and recruitment efforts that are reasonably designed to recruit qualified protected veterans. Contractors must send written notification of their affirmative action policy to subcontractors, and request their cooperation. The regulations provide a list of suggested outreach activities and resources. Contractors must conduct an annual assessment of their outreach efforts in order to evaluate the effectiveness of these efforts in recruiting qualified protected veterans. The documentation of this assessment must include the criteria used to evaluate the effectiveness of each outreach effort and the conclusion as to whether each effort was effective. The conclusion must be reasonable as determined by OFCCP. A contractor is required to document its efforts to comply with its internal audit and reporting system that measures the effectiveness of the AAP. If the contractor concludes that the totality of its efforts was not effective in recruiting qualified protected veterans, it must identify and implement alternative efforts in order to fulfill its obligations. The regulations require that all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor s affirmative action program are implemented. This training should be documented both by retaining any materials used in the training and by recording attendance at training sessions.

4 The new regulations significantly increases a contractor s data collection and record retention requirements with regards to applicants and hires. These are intended to assist in determining the availability of protected veterans as well as the effectiveness of the contractor s outreach efforts. The additional data must be retained for three years and include: The total number of applicants for all jobs; The number of applicants who self-identified as a protected veteran, or who are otherwise known as protected veteran; The total number of job openings and total number of jobs filled; The number of protected veteran applicants hired; and The total number of applicants hired. A contractor can use either of two hiring benchmark options for protected veterans. One option is to establish a benchmark that is equal to the national percentage of veterans in the civilian labor force (currently 8 percent), which will be provided on an annual basis to contractors by OFCCP. The second option, which is more complicated to establish, considers: The average percentage of veterans over the preceding three years in the civilian labor force in the state where the contractor is located (as published on the OFCCP website); The number of veterans over the previous four quarters who were participants in the employment service delivery system in the state where the contractor is located (as published on the OFCCP website); The applicant and hiring ratio for the previous year; The contractor s recent assessments of the effectiveness of its external outreach and recruitment efforts; and Any other factors including, but not limited to, the nature of the contractor s job openings and/or its location, which would tend to affect the availability of qualified protected veterans. The hiring benchmark for veterans is an aspirational goal of the percentage of protected veterans each contractor should endeavor to hire at each establishment on an annual basis, without regard to job group or EEO-1 category. Record-keeping A contractor is required to maintain for three years its documentation and assessment of external outreach and recruitment efforts, its compliance with the data collection requirements, and records relating to the benchmark. Compliance Evaluations (Audits) The regulations anticipate that OFCCP may conduct compliance evaluations, including a desk audit (may include on-site and off-site reviews of records), compliance checks, and focused reviews (conducted on-site or off-site). The regulations expressly authorize OFCCP to examine information created after the date of the audit scheduling letter if OFCCP deems it necessary to carry out its investigation of potential violations of the VEVRAA regulations.

5 Access to Records The new regulations retain the current regulatory requirement that a contractor must provide OFCCP access during normal business hours for purposes of conducting a compliance evaluation or complaint investigation. The regulations further require, however, that a contractor provide OFCCP off-site access to records, including electronic records. Contractors must inform OFCCP of the format(s) in which records are maintained and records must be provided to OFCCP upon request in any format in which they are maintained. CONCLUSION Every covered contractor and subcontractor will have to significantly enhance and document efforts to recruit and employ protected veterans. Noncompliance can result in sanctions up to and including debarment. Every contractor subject to VEVRAA should take note of its obligations with regard to affirmative action and nondiscrimination for protected veterans. More information, including Frequently Asked Questions, is available at

6 Pre-Offer Sample Invitation to Self-Identify This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C (VEVRAA), which requires Government contractors to take affirmative action to employ and advance in employment: (1) disabled veterans; (2) recently separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed Forces service medal veterans. These classifications are defined as follows: A disabled veteran is one of the following: a veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or a person who was discharged or released from active duty because of a service-connected disability. A recently separated veteran means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval, or air service. An active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense. An Armed forces service medal veteran means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order If you believe you belong to any of the categories of protected veterans listed above, please indicate by checking the appropriate box below. As a Government contractor subject to VEVRAA, we request this information in order to measure the effectiveness of the outreach and positive recruitment efforts we undertake pursuant to VEVRAA. [ ] I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF PROTECTED VETERAN LISTED ABOVE [ ] I AM NOT A PROTECTED VETERAN [ ] I CHOOSE NOT TO DISCLOSE If you are a disabled veteran it would assist us if you tell us whether there are accommodations we could make that would enable you to perform the essential functions of the job, including special equipment, changes in the physical layout of the job, changes in the way the job is customarily performed, provision of personal assistance services or other accommodations. This information will assist us in making reasonable accommodations for your disability. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. The information you submit will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of disabled veterans, and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by the Office of Federal Contract Compliance Programs, or enforcing the Americans with Disabilities Act, may be informed.

7 Post-Offer Sample Invitation to Self-Identify This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, 38 U.S.C (VEVRAA), which requires Government contractors to take affirmative action to employ and advance in employment: (1) disabled veterans; (2) recently separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed Forces service medal veterans. These classifications are defined as follows: A disabled veteran is one of the following: a veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or a person who was discharged or released from active duty because of a service-connected disability. A recently separated veteran means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval, or air service. An active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense. An Armed forces service medal veteran means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order As a Government contractor subject to VEVRAA, we are required to submit a report to the United States Department of Labor each year identifying the number of our employees belonging to each specified protected veteran category. If you believe you belong to any of the categories of protected veterans listed above, please indicate by checking the appropriate box below. I BELONG TO THE FOLLOWING CLASSIFICATIONS OF PROTECTED VETERANS (CHOOSE ALL THAT APPLY): [ ] DISABLED VETERAN [ ] RECENTLY SEPARATED VETERAN [ ] ACTIVE WARTIME OR CAMPAIGN BADGE VETERAN [ ] ARMED FORCES SERVICE MEDAL VETERAN [ ] I am a protected veteran, but I choose not to self-identify the specific classifications [ ] I am NOT a protected veteran. [ ] I choose not to disclose. If you are a disabled veteran it would assist us if you tell us whether there are accommodations we could make that would enable you to perform the essential functions of the job, including special equipment, changes in the physical layout of the job, changes in the way the job is customarily performed, provision of personal assistance services or other accommodations. This information will assist us in making reasonable accommodations for your disability. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. The information you submit will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of disabled veterans, and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by the Office of Federal Contract Compliance Programs, or enforcing the Americans with Disabilities Act, may be informed.

williams mullen Effective March 24, 2014 Lynn F. Jacob, Partner Richmond, VA

williams mullen Effective March 24, 2014 Lynn F. Jacob, Partner Richmond, VA williams mullen Technical Phases of OFCCP s Regulations Regarding Individuals with Disabilities, Disabled Veterans, Recently Separated Veterans, Other Protected Veterans and Armed Forces Service Medal